The ICANN-U.S. AOC: What It Really Means

The JPA is dead. Long live the AOC. The Joint Project Agreement (JPA)
which has defined the relationship between ICANN and the United States government for the past three years expired on September 30th, and that same day an Agreement of Commitments (AOC – see http://www.icann.org/en/announcements/announcement-30sep09-en.htm for text) was unveiled by these same parties to govern their relationship for the indefinite future. The AOC essentially transfers a significant chunk of U.S. oversight authority to ICANN’s Governmental Advisory Committee (GAC) and establishes four separate accountability “review teams” that will operate on set schedules, with the GAC having a permanent seat on all and sharing co-equal responsibility for selecting their members.

Given the amorphous language embodied in this species of document along with the absence of clearly articulated enforcement mechanisms it cannot be confidently predicted how this new multinational oversight structure will play out in practice. ICANN’s second decade is likely to be quite different than its first, but it will take some time before the dynamics of this new arrangement fully reveal themselves.

Evaluation of the real world implementation of the AOC will of course be governed by the “watch what we do, not what we say” principle. That said, our initial reading of the AOC leads us to the following preliminary conclusions:

• The U.S. remains first among equals. The JPA and now the AOC are reporting and accountability arrangements. The ultimate power over the domain name system (DNS) lies in the separate IANA contract that permits ICANN to operate the DNS root zone file. It remains completely within U.S. control through 2011, and no credible source is even speculating that the U.S. would cede control of that contract to a multinational consortium. Also, the U.S. is the only nation accorded a permanent seat on the review team responsible for accountability, transparency, and the interests of global Internet users. Finally, ICANN will also remain headquartered in the U.S. — ICANN presently maintains offices in Los Angeles, Washington, Brussels and Sydney, and the AOC states: ICANN affirms its commitments to…remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community. So, despite the transfer of oversight to the GAC, ICANN will remain U.S.-centric for the foreseeable future, and Congress and the Department of Commerce (DOC) will still be a locus for receipt of feedback about ICANN’s performance.

• The GAC is Now the GOC. According to a Wall Street Journal quote of ICANN CEO Rod Beckstrom regarding the AOC, "By America relaxing some control and inviting other countries to have an active hand, that increases the possibility that the global Internet will remain unified." It’s true that the expanded role carved out for the GAC is likely a good defense against potential capture by the International Telecommunications Union (ITU) and against the “fractured root” that could result from the actions of major nations to exit the ICANN infrastructure. But the significant new authority ceded to the GAC transforms its role from advice to oversight, as outlined by the Internet Governance Project in a thought-provoking comment at http://blog.internetgovernance.org/blog/_archives/2009/9/30/4337767.html:

The AoC establishes three-year review cycles in four areas of concern: 1) accountability-transparency-public interest; 2)security-stability-resiliency; 3)competition-consumer trust-consumer choice; and 4) Whois (which is grouped under the consumer trust heading but has its own review process). These reviews are conducted by panels appointed by agreement of the Chair of ICANN’s Governmental Advisory Committee (GAC) and the ICANN Board Chair or President. The review teams develop nonbinding recommendations, and the Board must act on these recommendations within 6 months. Each review panel must include the Chair of the Governmental Advisory Committee, the ICANN Board chair or President, and representatives of ICANN’s Supporting Organizations and Advisory Committees. They can also include a sprinkling of independent experts.(Emphasis added.)

This expanded GAC role may well introduce greater multinational political pressures within ICANN’s internal processes, as well as bring them to bear from without. For example, European Commissioner for Information Society and Media Viviane Reding issued a statement welcoming the AOC and calling for a greater intermingling of ICANN oversight with the work of the UN-sponsored Internet Governance Forum (IGF): “ The challenge now is to make the GAC, with its enhanced role, more effective in its work, and to further strengthen the dialogue between governments, businesses, and civil society via the Internet Governance Forum.” (See http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1397&format=HTML&aged=0&language=EN&guiLanguage=en for her full statement.) So, despite the AOC’s reaffirmation of the “private sector led…model for DNS technical coordination”, the end of the JPA appears to be introducing a much expanded role for the multinational public sector. It is theoretically possible that this greater GAC involvement will work to focus ICANN on core technical functions. But it is more likely that it will further politicize ICANN’s policy development process and pull it into issues tangential to a narrow technical role.

• New gTLDs Will Take a Back Seat to IDNs. The AOC conspicuously endorses the introduction of non-Latin character International Domain Names (IDNs) at country code TLDs (ccTLDs): DOC…endorses the rapid introduction of internationalized country code top level domain names (ccTLDs), provided related security, stability and resiliency issues are first addressed. Simultaneously, it gives tepid non-endorsement to new gTLDs, first stating (in a sentence whose inclusion was likely resisted by ICANN):

Nothing in this document is an expression of support by DOC of any specific plan or proposal for the implementation of new generic top level domain names (gTLDs) or is an expression by DOC of a view that the potential consumer benefits of new gTLDs outweigh the potential costs.

And it later adds this requirement:

ICANN will ensure that as it contemplates expanding the top-level domain space, the various issues that are involved (including competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection) will be Adequately addressed prior to implementation. If and when new gTLDs (whether in ASCII or other language character sets) have been in operation for one year, ICANN will organize a review that will examine the extent to which the introduction or expansion of gTLDs has promoted competition, consumer trust and consumer choice, as well as effectiveness of (a)the application and evaluation process, and (b)safeguards put in place to mitigate issues involved in the introduction or expansion.(Emphasis added.)

The very use of the word “contemplates” (and every word is carefully negotiated in a document such as this) indicates a stage of the new gTLD process far earlier than an imminent opening of the application window in the first quarter of 2010, as “contemplates” is generally synonymous with “thinks about”. And the additional verbiage indicates a belief that the introduction of new gTLDs is not a foregone conclusion and that the Draft Applicant Guidebook has not yet adequately addressed these matters of concern.

The prioritization of ccTLD IDNs was buttressed by ICANN’s simultaneous September 30th announcement (http://www.icann.org/en/announcements/announcement-2-30sep09-en.htm)of a proposed Final Implementation Plan for the ccTLD IDN Fast Track Process, to be voted upon by the ICANN Board at its Seoul meeting in late October — and with a proposed launch date of November 16, 2009. This imminent opening up of ccTLD IDNs will probably incent existing gTLD registries to bring pressure for permitting gTLD IDNs to proceed as well, rather than continuing to hold them hostage to the introduction of new gTLDs; a severance of that linkage could leave new gTLDs stranded on their own. Finally, given the recent GAC call for many additional studies prior to the introduction of new gTLDs, and its resistance to allowing for unlimited applications (see http://www.internetcommerce.org/GAC_to_ICANN_gTLDs), it hardly seems likely that the newly empowered GAC will give a green light to near-term opening of the new gTLD application window.

What does all this mean for the domainers? Again, while it will take some time to assess the full ramifications, ICANN policymaking will likely become even more politicized, and somewhat less hospitable to freewheeling entrepreneurs than the dotcom cultural mindset of the 1990s that produced ICANN’s spin-off from DOC. The introduction of new
gTLDs may well be slowed and scaled back, lessening the odds that it will be accompanied by draconian trademark rules that could eventually blow back into .com and other incumbent gTLDs. And there could well be renewed pressure from the GAC to restrict geo-names at the second level.

Clearly, the continued engagement of the domain investment industry within ICANN will take on added importance as ICANN enters this next stage of its organizational evolution.